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Decisions of the Nineteenth Century Tasmanian Superior Courts

Meredith v. Murray [1833]

libel, publication - nonsuit - public meeting

Supreme Court of Van Diemen's Land

Pedder C.J., 11 June 1833

Source: Tasmanian, 12 July 1833 [1]

This was an action for libel, and the damages were laid at £5,000. The Attorney General, with Messrs Cartwright and Allport, appeared for the plaintiff, and Mr. Gellibrand, with Mr. Thomas Young, for the defendant.

Mr. Allport opened the proceedings, and stated, that the present action was brought against Mr. Murray, by Mr. Meredith, for a libel, which appeared in the Tasmanian newspaper so long ago as the 14th of May, 1832, when Mr. Murray was the Editor of that Journal. The declaration contained four counts, which, as usual, consisted of the different legal interpretations which had been put upon the libel.

The Attorney General in this case appeared for the plaintiff; the nature of this action was very short, and he would endeavour to explain it as briefly as possible. He had expected that on this occasion the defendant would have conducted his own defence; but in this he was disappointed, and had now to contend with the talent, experience, and ingenuity of his learned friend, Mr. Gellibrand. The great difficulty in his case was to prove the authorship of the article complained of; a fact, which Mr. Murray's candour would have at once admitted; as he had already - he would not say - boasted of, but had frequently asserted. The article in question appeared in theTasmanian of the 14th January, 1832, and an action was commenced soon afterwards. It is unnecessary, now, to state the cause of the delay which has occurred; but the cause was ripe for trial at the sittings after last term, and would have come on, but for the indisposition of Mr. Melville, who was a principal witness. Instructions had been previously given to Mr. Ross; but the pressure of public business, which fell upon that gentleman, prevented him from attending to them; they were ultimately handed over to Messrs. Cartwright and Allport, and the trial was now presented to the Court.

The paragraph set forth in the declaration originated as follows. On the 23d of May, 1831, a public meeting was held in that Court House for the purpose of petitioning Parliament on some important political matters; and, after expending a considerable portion of eloquence, certain resolutions were presented to the meeting, and eventually agreed to. A discussion afterwards arose as to whether the Sheriff, who convened the meeting, should sign the resolutions on behalf of the meeting generally, or whether they should be signed by each individual composing it; when considering the signature of the Sheriff more imposing, it was agreed to apply to that officer to affix his signature to the resolutions. He refused, however, to do so, on the plea, that a certain time had elapsed, and that had he been called on to do so at the meeting, he might have acceded to the request. A correspondence, in consequence, ensued; and a committee was appointed to conduct it, consisting of the following gentlemen - Messrs. Kemp, J.T. Gellibrand, Horne, Gregson, Edward Abbott, Smith, and Meredith. The two last-named gentlemen, however, were obliged to leave town, and could not, therefore, act with the committee, which was reduced to five. Mr. Murray was, at that time, Editor, and believed, Proprietor of theTasmanian; and in that capacity, he was applied to by one of the committee to insert in his Journal, a copy of the correspondence which had taken place between the Sheriff and the committee. Mr. Murray's reply to this request, as published in the Tasmanian of the 14th of Jan. 1832, constituted the present libel, and he would read it to the Court:-

"Sir, - The committee appointed at the public meeting of the 23d May last, to carry the objects of that meeting into full effect, request you will publish the enclosed correspondence, which will explain the causes of the delay that has taken place in the transmission of the Address to His Majesty, and which will now be forwarded per the Eliza.

"Upon receiving this anonymous communication, we stated candidly to the gentleman who did us the favor personally to deliver it, that after a careful perusal of the papers it enclosed, we differed so entirely with the committee, that if we inserted the correspondence, it would be only to justify the Sheriff, in the view he had taken, considering the request made to him to be unprecedented, that he should certify to the accuracy of papers, which if it had ever been considered necessary that he should do, the occasion of the Public Meeting was the proper time, and the only proper time to require such, and that if, like Friar Bacon's period, it was allowed to pass by, it could never be recalled but at his option. The courtesy, or perhaps the propriety of his refusing to comply with the request of the Committee, is quite another thing: that he has right so to refuse, we consider it to be unquestionable.

"Still, however, if the five gentlemen, Messrs. Kemp, Abbott, Gellibrand, Horne, and Gregson, yet wish of us to insert the correspondence, we certainly shall not hesitate so to do; it being understood, that such insertion will be accompanied with whatever comments we may consider appropriate. We have the less objection to the appearance of the correspondence in our pages, because a name, which we apprehend every man of common feeling in the whole Colony, will never hear without horror, is carefully omitted throughout."

It was obvious that this paragraph was written by Mr. Murray; and it must apply either to Mr. Smith or Mr. Meredith, because they were the only gentlemen who had left the Committee. That it was not Mr. Smith, I will prove to you, for that gentleman, upon seeing this article in the paper, hastened to town from the Coal River, where he resides, and called upon Mr. Murray, for explanation. Mr. Smith's evidence will be given, but what it is he could not tell, as he had refused to impart it to the plaintiff's solicitors, until he appeared in the witness box. Mr. Smith, however, returned to the country perfectly satisfied, and the paragraph, therefore, did not apply to him. To whom, then, did it apply? Out of the seven members of the Committee, two had withdrawn themselves. One of these, who thought it might apply to him, had been satisfied that is did not; and only one remained - Mr. Meredith. The amiable feelings which existed between Mr. Murray and Mr. Meredith, will be shewn, when theanimus which prompted this attack, will become apparent also.

The first question to be considered, then, does this paragraph apply to Mr. Meredith? - and the second, is it libellous? These are the points to be considered by the Assessors, who are alone to judge the case. His Honor would assist them with his opinion, but they are the judges of the whole matter. A paragraph more deeply reflecting upon the character of any man, cannot be punished. The dark and covert mode of its construction - "A name not to be mentioned without horror!" Believing this to apply to Mr. Meredith, the Assessors would consider what damages were due to that gentlemen; and putting all political and party feeling out of the question, consider the verdict accordingly.

H. J. Emmett examined by the Attorney General. Was chief clerk in the Colonial Secretary's Office in January 1832. Was especially appointed to receive the newspapers for the Colonial Secretary. The Tasmanian of the 14th January, 1832, was printed and published by Henry Mellville, at the Tasmanian Office, Elizabeth-street. Received that paper from Frederick Smith, who was in the employment of Mr. Melville, and in the habit of delivering newspapers from the Tasmanian Office. Received four papers from the Tasmanian Office - two were delivered by Mr. Earle, one by Frederick Smith, and one from Mr. Melville himself.

Burnett, Esq. - Produced the affidavit, attesting that Mr. Melville was the printer and publisher of theTasmanian in January 1832.

Mr. H. Melville. - Is the proprietor of the Tasmanian, and was so in January 1832. Mr. Murray was the Editor. The literary and editorial parts were under Mr. Murray's sole control and management. The leading articles were not all written by Mr. Murray. Has not got the manuscript of the paper of the 14th of January, 1832: there is no portion of it remaining since Mr. Murray left; the manuscript used to be burnt every fortnight by Mr. Murray himself. Cannot say he ever read that article before; has read it now, he thinks, for the first time: had heard a portion of it read before by Mr. Allport. Earle was in his employment in January, 1832.

Cross-examined by Mr. Gellibrand. - When Mr. Allport read a portion of the article to me, I looked for the manuscript, as I considered myself bound to do so. It did not occur to me at the time, that Mr. Murray used to burn the manuscripts periodically. I have been occasionally present when Mr. Murray has been burning papers. I cannot tell whether Mr. Murray burnt his papers regularly. When copy is set up, it is rolled up and brought down stairs. I now keep all the copy, but formerly it was taken into Mr. Murray's room, and, I believe, burnt. I cannot tell whether any body else had authority to burn manuscripts. Perhaps the printer might have done so. It is frequently customary to return a manuscript to its author after it has been set up.

Joseph Bryant. - Is a compositor, and in January 1832, was in the employment of Mr. Melville. Cannot say who set up the article in the Tasmanian for the 14th of January: it must have gone through his hands. Cannot say who wrote it. Mr. Murray was at that time the Editor, and had the control and amazement of the Editorial department. It might have gone in without Mr. Murray having seen the manuscript; but he must have seen the proof. Mr. Murray always read the proof of the Editorial parts; - seldom troubled his head about the spelling, leaving that to the compositor.

Mr. F. Smith. - Lives at the Coal River. In May 1831, attended a public meeting at Hobart Town, and read a resolution. Was appointed on the committee, but returned home after the meeting, taking no further personal interest in the proceedings of the meeting. Has heard the names of the committee read, since he has been in Court. Has read the article before at the Coal River. In consequence of seeing it, came to Hobart Town, for the purpose of calling upon Mr. Murray, whom he understood to be the Editor of the Tasmanian. Called previously upon Mr. Horne, and afterwards saw Mr. Murray with Mr. Horne, and had some conversation with him in reference to this paragraph. Told Mr. Murray he had been previously satisfied by Mr. Horne, that the paragraph in the paper did not allude to him, and now called upon Mr. Murray for a confirmation of this. Murray told him, he was not the person alluded to, but that Mr. George Meredith was.

Mr. Horne. - Attended a public meeting on the 23d May, 1831; became one of a committee of ten, to conduct a correspondence with the late Sheriff, relative to the meeting. The letters now produced are copies of that correspondence. Remembers something of an application being made to the Editor of the Tasmanian, to publish this correspondence in that paper, but does not think it was made by him. The article headed "Twenty-third of May," he has read before; had some conversation in company with Mr. Smith and Mr. Murray, relating to it. Mr. Smith called upon him very early one morning, before breakfast, when he accompanied him to Mr. Murray's residence of Dynnyrne; met Mr. Murray on the road; supposes Mr. Smith addressed Mr. Murray in his character as the Editor of the Tasmanian, and believes Mr. Murray acknowledged his control over that paper; does not recollect what Mr. Murray said, or what conversation passed between him and Mr. Smith, for, to the best of his belief, he walked on the other side of the path. Believes this libel to apply to Mr. Meredith, from circumstances unconnected with this case, but which were perfectly notorious at the time; thinks there were ten gentlemen originally elected on the committee.

Mr. Edward Abbott was called but did not answer.

Mr. Joseph Archer - Lives at Pensanga, in the county of Cornwall; his known Mr. Meredith for fourteen years; knew him at home; believes the article to apply to Mr. Meredith.

Cross-examined by Mr. Gellibrand. - Why?

Witness. - Even had I not heard Mr. Smith's evidence, I had made up my mind before I came into Court.

Mr. Gellibrand. - Why?

Witness. - From the exclusion of Mr. Meredith's name from the committee, the other names being deemed unexceptionable. But this was not the only reason why I considered this to apply to Mr. Meredith, I was aware that Messrs. Murray and Meredith were not on good terms. I saw the article at the time of its publication; but was not at the public meeting; saw that Mr. Meredith was on the committee from some newspaper, did not know ten persons were appointed on the committee; did not recollect whether he noticed any other omission at the time; his impression was that Mr. Meredith was the only person omitted.

Mr. Edward Abbott was again called, but did not answer.

This was the case for the plaintiff.

Mr. Gellibrand, for the defence, contended that the paper produced could not be received in evidence, as it was not signed and delivered by the Printer himself, at the office of the Colonial Secretary, according to the provisions of the Newspaper Act of Council.

His Honor overruled this objection, by stating, that this was not necessary, as a copy of the paper so signed and delivered, was quite sufficient.

Mr. Gellibrand. - The plaintiff must still be nonsuited on several grounds. The inducements on the several allegations could not be maintained. There was no proof that the plaintiff was present at the meeting on the 23d May, 1831 - no proof of the nomination of the several persons to the committee. The plaintiff by his declaration avers there were seven men on the committee - one of the witnesses (Mr. Horne) believes there were ten. There was no proof that Mr. Murray was the author.

Plaintiff nonsuited, with leave to move the Court for a new trial.


[1] The assessors were William Wilson and Adam Turnbull M.D., esquires. See also Hobart Town Courier, 12 July 1833; Colonist, 16 July 1833. For Murray see C.R. Murray, 'Robert William Felton Lathrop Murray (1777-1850)', Australian Dictionary of Biography, vol. 2, pp. 272-4 and for Meredith see D. Hodgson, 'George Meredith (1777-1856)', Australian Dictionary of Biography, vol. 2, pp. 224-6. Murray tried to win favours from Governor Arthur by attacking Arthur's enemies see E.M. Miller, Pressmen and Governors, Sydney: Sydney University Press, 1974, pp. 28 and 60.

Published by the Division of Law, Macquarie University and the School of History and Classics, University of Tasmania